Ballman v. Duffecy, 28799

• Citation: 102 N.E.2d 646, 230 Ind. 220
• Case Date: January 07, 1952
• Court: Supreme Court of Indiana

Page 646

102 N.E.2d 646 230 Ind. 220 BALLMAN et al.
v.
DUFFECY et al. No. 28799. Supreme Court of Indiana. Jan. 7, 1952.

[230 Ind. 223]

Page 647

Arthur J. Sullivan, James C. Jay, Indianapolis, Frederick E. Schortemeier, Indianapolis, of counsel, for appellants.

Leo M. Gardner, Indianapolis, for Michael J. Duffecy and Josephine D. Duffecy.

Edward H. Knight, Corp. Counsel, Michael B. Reddington, City Atty. and Adolph G. Emhardt, Asst. City Atty., Indianapolis, for Members of Board of Zoning Appeals and for City of Indianapolis, a municipal corporation.

JASPER Judge.

This is an appeal from a judgment dismissing a petition for a writ of certiorari to review a decision of the Board of Zoning Appeals of the City of Indianapolis. A variance had been granted by the Board of Zoning Appeals. Appellants filed their petition for a writ of certiorari to review the decision, pursuant to §§ 53-783, 53-784, and 53-785, Burns' 1951 Replacement. Appellees entered a special appearance and filed a motion to dismiss the petition for a writ of certiorari, contending that the statutory jurisdiction of the trial court to hear and decide the controversy presented by the petition for a writ of certiorari filed by appellants had not been invoked within the time provided by the statute. The trial court entered judgment dismissing the petition for a writ of certiorari and taxing the costs against petitioners.

Appellants contend that it was error for the trial court to sustain appellees' motion to dismiss appellants' petition.

The procedure for the review of a decision of a board of zoning appeals is statutory.

[230 Ind. 224] The pertinent part of § 53-783, Burns' 1951 Replacement, ¹ is follows:

'Every decision of the board of zoning appeals shall be subject to review by certiorari.

'Any person or persons, firm or corporation jointly or severally aggrieved by any decision of the board of zoning appeals, may present to the circuit or superior court of the county in which the premises affected is located a petition, duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the entry of the decision or order of the board of zoning appeals complained of.'

The pertinent part of § 53-784, Burns' 1951 Replacement, is as follows:

'On filing a petition for a writ of certiorari with the clerk of the circuit or superior court of the county in which the

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premises affected are situated, the petitioner shall cause a notice to be issued and served by the sheriff of the county upon the adverse party or parties, if any, as shown by the record of the appeal in the office of the board of zoning appeals. * * *

'The notice shall state that a petition for a writ of certiorari has been filed in the circuit or superior court of the county, as the case may be, asking for a review of the decision of the board of zoning appeals, designating the premises affected and the date of the decision and the time fixed for the return of the writ of certiorari by the board of zoning appeals.

'The service of the writ of certiorari by the sheriff on the chairman or secretary of the board of zoning appeals shall constitute notice to the board and to the city or any official or board thereof charged with the enforcement of the zoning ordinance, and no further summons or notice with [230 Ind. 225] reference to the filing of such petition shall be necessary.'

Section 53-785, Burns' 1951 Replacement, provides as follows: 'Upon presentation of a petition for a writ of certiorari, the circuit or superior court of the county in which the premises affected are situated, or a judge thereof in vacation shall direct the board of zoning appeals within twenty days from the date of such citation, to show cause why a writ of certiorari should not issue. If such board fails to show to the satisfaction of the court that a writ should not issue then the court may allow a writ of certiorari directed to the board of zoning appeals. The writ shall prescribe the time in which a return shall be made to it. This time shall not be less than ten days from the date of issuance of the writ and may be extended by the court or judge thereof.'

It was for failure of appellants to comply with the last-cited sections of the statute that the trial court entered its finding and judgment dismissing the petition for a writ of certiorari. The pertinent part of such finding and judgment is as follows:

'* * * now finds from its records that said petition for writ of certiorari was filed in the office of the clerk of this court on January 9, 1951, which was within thirty days after the entry of the decision complained of therein; that this court did not enter any order whatsoever in this review proceeding nor issue a writ of certiorari or fix a time for the return thereof, nor was any writ of certiorari nor rule to show cause served upon defendant, Board of Zoning Appeals, or City within said thirty days nor within fifty days, after the entry of the decision complained of nor has it been requested to enter any order or issue any such writ; that no such notice as required by the applicable statute was given defendants who have [230 Ind. 226] filed herein their motions to dismiss said petition for writ of certiorari of any time fixed by this court for the return to any such writ or to show cause and that the purported notice given was defective; that...